The following papers were read on the claimant's application for permission to
file a late claim: Notice of Motion, Affirmation, Affidavit, Physician's
Affirmation, and Exhibits annexed; Affirmation in Opposition.
By Order filed June 20, 2000 (Motion No. M-61700), the Court denied the
claimant's application for permission to file a late claim in connection with an
automobile accident. The Court in its Order determined that the statutory
factors of notice, opportunity and prejudice weighed in claimant's favor, that
the delay in filing the claim was not excusable, and that the claimant may have
other available remedies. See, Bay Terrace Cooperative Section IV, Inc. v
New York State Employees' Retirement System Policemen's and Firemen's Retirement
System, 55 NY2d 979, 981. The application was denied without prejudice to
renewal upon proper papers. The Court noted that "in the absence of any
evidence whatsoever of serious injury, the proposed claim cannot be said to be
meritorious. See, Edwards v State of New York, 119 Misc 2d 355; cf.,
Ferster v State of New York, 129 Misc 2d 333."
By this application, the claimant again seeks permission to file a late claim.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), the current application
was filed within the relevant statute of limitation so the Court has
jurisdiction to grant relief under §10(6).
Based upon the Court's prior Order, the sole issue presented by this
application is whether the claimant has demonstrated that she sustained serious
injury (Insurance Law §§ 5102[d], 5104). The current submission
includes an affirmation by a physician, which, for the purpose of Court of
Claims Act §10(6), is sufficient to demonstrate that the claimant sustained
serious injury; as such, the claimant has demonstrated that the claim appears
Having considered the relevant statutory factors, Bay Terrace, supra, it
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
(in the form in which it is annexed to her submission as Exhibit B, except that
it shall be denominated a claim) in accordance with the provisions of Court of
Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the
Court of Claims, and serve it, in accordance with the provisions of Court of
Claims Act §11, either personally or by certified mail return receipt
requested, upon the Attorney General, within 45 days of the date of the filing
of this Order.